EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of November
22, 1996, between IVI PUBLISHING, INC., a Minnesota corporation ("IVI"), and the
shareholders listed in Schedule A hereto (individually referred to herein as the
"Shareholder" and collectively referred to as "Shareholders").
WITNESSETH
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms used in this Agreement shall be
defined as follows:
"Agreement" means this Registration Rights Agreement.
"Common Stock" means the Common Stock, $.01 par value, of IVI.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Registration Statement" means a registration statement filed by IVI with
the SEC for a public offering and sale of securities of IVI (other than a
registration statement on Form X-0, Xxxx X-0, any successor form thereto, or any
other form covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 1.2.
"Registrable Shares" means the Shareholder's Shares provided, however, that
the Shareholder's Shares shall cease to be Registrable Shares upon any sale
pursuant to a Registration Statement or Rule 144 under the Securities Act or
when any Shareholders Shares may be sold pursuant to Rule 144.
"SEC" means the Securities and Exchange Commission, or any other Federal
agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Selling Shareholder(s)" means any shareholder who offers for sale
Registrable Shares in any Registration Statement
"Shareholders" means all the persons listed as shareholders on Schedule A.
"Shareholder's Shares" means the shares of Common Stock issued to the
Shareholder upon conversion of 9% Convertible Subordinated Debentures issued to
investors on the same date hereof, or any other shares of Common Stock of IVI
issued in respect of such shares in connection with any stock split, stock
dividend, reclassification, recapitalization, or similar event.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Registration Rights.
(a) If the Company at any time within three (3) years after November 22,
1996, proposes to register under the 1933 Act any of its securities, other than
securities registered under Forms S-8 or S-4, it will give written notice to all
Shareholders of its intention to do so and, on the written request of any such
Shareholder given within twenty (20) days after receipt of any such notice, IVI
will use its best efforts to cause all such Registrable Shares, the Shareholders
of which shall have requested the registration thereof, to be included in such
Registration Statement proposed to be filed by IVI.
(b) Further, on a one-time basis only, at any time after May 31, 1997,
upon request by at least 30% of the shares of Common Stock issued or issuable
upon Conversion of the Debentures, the Company will file a Registration
Statement on Form S-3 within 30 days after receipt from such persons requesting
registration of information the Company needs in order to prepare and file such
registration statement and will use its best efforts to take all necessary steps
to register or qualify, under the Securities Act and the securities laws of such
states (no more than two states) as the Shareholder may reasonably request,
these Registrable Shares requested by such Shareholder in their request to IVI.
(c) Following the exercise of the Company's right to call in whole or in
part, the conversion of the Debentures, into Registrable Shares of Company
Common Stock, the Company will use its best efforts to prepare and file a
Registration Statement on Form S-3 to register the resale of such Registrable
Shares by the Shareholders under the Securities Act and the securities laws of
such states (no more than two) as the Shareholders shall reasonably request.
2.2 Underwriting. In connection with any offering under this Article 2
involving an underwriting, IVI shall not be required to include any Registrable
Shares in such underwriting unless the Shareholders thereof accept the terms of
the underwriting as agreed upon between IVI and the underwriters selected by it.
If, in the written opinion of the managing underwriter, the registration of all,
or part of, the Registrable Shares which the Shareholders have requested to be
included in such registration exceed the number of shares which can be sold
without adversely affecting the marketability of the offering, then IVI shall be
required to include in the underwriting only that number of Registrable Shares
which the managing underwriter believes may, when added to the number of shares
of Common Stock which other Shareholders entitled to include shares of Common
Stock in such registration have requested to be included therein, be sold
without causing such adverse effect. If the number of Registrable Shares to be
included in the underwriting in accordance with the foregoing is less than the
total number of shares which the Shareholders of Registrable Shares have
requested to be included, then the Shareholders of Registrable Shares who have
requested registration and other holders of shares of Common Stock entitled to
include shares of Common Stock in such registration shall participate in
the underwriting pro rata based upon their total ownership of shares of Common
Stock of IVI. If any Shareholder would thus be entitled to include more shares
than such Shareholder requested to be registered, the excess shall be allocated
among other requesting Shareholders pro rata based upon their total ownership of
Registrable Shares.
2.3. Expenses. With respect to each inclusion of securities in a
Registration Statement pursuant to this Section, IVI shall bear the following
fees, costs, and expenses: all registration, filing and NASD fees, printing
expenses, fees and disbursements of counsel and accountants for IVI, fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if IVI is required to bear such fees and disbursements), all internal expenses,
the premiums and other costs of policies of insurance against liability arising
out of the public offering, and legal fees and disbursements and other expenses
of complying with state securities laws of any jurisdictions in which the
securities to be offered are to be registered or qualified. Fees and
disbursements of special counsel and accountants for the Shareholders,
underwriting discounts and commissions, and transfer taxes for Shareholders and
any other expenses relating to the sale of securities by the Shareholders not
expressly included above shall be borne by the Shareholders.
2.4 Indemnification. The Company hereby indemnifies the Shareholders and
the officers and directors, if any, who control such Shareholders, within the
meaning of Section 15 of the 1933 Act, against all losses, claims, damages, and
liabilities caused by (1) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (and as
amended or supplemented if IVI shall have furnished any amendments thereof or
supplements thereto), any Preliminary Prospectus or any state securities law
filings; (2) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading except insofar as such losses, claims, damages, or liabilities are
caused by any untrue statement or omission contained in information furnished in
writing to IVI by such Shareholder expressly for use therein; and each such
Shareholder by its acceptance hereof severally agrees that it will indemnify and
hold harmless IVI, each of its officers and directors who signs such
Registration Statement, and each person, if any, who controls IVI, within the
meaning of Section 15 of the 1933 Act, with respect to losses, claims, damages,
or liabilities which are caused by any untrue statement or omission contained in
information furnished in writing to the Company by such Shareholder expressly
for use therein.
2.5 Registration Procedures. If and whenever IVI is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Registrable Shares under the Securities Act, IVI shall:
(a) file with the SEC a Registration Statement with respect to such
Registrable Shares and use its best efforts to cause that Registration Statement
to become and remain effective;
(b) as expeditiously as possible prepare and file with the SEC any
amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than six (6) months
from the effective date;
(c) as expeditiously as possible furnish to the Shareholders who are
selling Registrable Shares pursuant to such registration (the "Selling
Shareholders") such
reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the Selling Shareholders may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the Selling Shareholders;
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the Selling Shareholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the Selling Shareholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the Selling Shareholders; provided, however, that IVI shall not be required
in connection with this paragraph (d) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction; and
(e) if IVI has delivered preliminary or final prospectuses to the
Selling Shareholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, promptly notify the Selling
Shareholders and, if requested, the Selling Shareholders shall immediately cease
making offers of Registrable Shares and return all prospectuses to IVI. IVI
shall promptly provide the Selling Shareholders with revised prospectuses and,
following receipt of the revised prospectuses, the Selling Shareholders shall be
free to resume making offers of the Registrable Shares.
2.4 Information by Selling Shareholders. Each Selling Shareholder
included in any Registration Statement shall furnish to IVI such information
regarding such Selling Shareholder and the distribution proposed by such Selling
Shareholder as IVI may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
2.5 Rule 144 Requirements. So long as IVI has a class of securities
registered under Section 12 of the Exchange Act, IVI agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of IVI under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any Selling Shareholder upon request a written
statement by IVI as to its compliance with the reporting requirements of said
Rule 144 (at any time after 90 days following the closing of the first sale of
securities by IVI pursuant to a Registration Statement), and of the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements), a copy of the most recent annual or quarterly report of
IVI, and such other reports and documents of IVI as such shareholder may
reasonably request to avail itself of any similar rule or regulation of the SEC
allowing it to sell any such securities without registration.
2.6 Transfers of Registration Rights. The rights granted to Shareholders
of Registrable Shares pursuant to Article 1 of this Agreement may not be
transferred by such Shareholders to any person or entity, except to related
person or affiliate of such entity.
2.7 Granting of Registration Rights. IVI may from time to time grant
other holders of IVI Common Stock registration rights similar or different than
the registration rights herein. Nothing in this Agreement shall prohibit or
restrict IVI from granting registration rights to any holders of its Common
Stock.
ARTICLE 3
MISCELLANEOUS
3.1 Specific Performance. The parties hereto acknowledge that in the
event of any breach of the provisions of this Agreement, the nonbreaching party
would be irreparably harmed and could not be made whole by monetary damages. It
is accordingly agreed that, in addition to any other remedy to which a party may
be entitled at law or in equity, the obligations of the parties hereunder shall
be specifically enforceable and no party shall take any action to impede the
others from seeking to enforce such right of specific performance.
3.2 Severability. If the final determination of a court of competent
jurisdiction declares, after the expiration of the time within which judicial
review (if permitted) of such determination may be perfected, that any term of
provision hereof is invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term
or provision shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision.
3.3 Notices. All notice or other communications to a party required or
permitted hereunder shall be in writing and shall be given by hand delivery,
courier service (with acknowledgement of receipt), telecopy (with confirmation
of transmission), or by certified mail, postage prepaid with return receipt
requested, to the following person at the following address:
(a) If to a Shareholder, to such Shareholder's address as provided after
his signature herein.
(b)If to IVI to:
IVI Publishing, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
with a copy to:
Xxxxxxxxxx & Xxxxx, P.A.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
Any party may change the above-specified recipient and/or mailing address by
notice to all other parties given in the manner herein prescribed. All notices
shall be deemed given on
the day when actually delivered as provided above (if delivered personally or by
telecopy) or on the day shown on the return receipt (if delivered by mail).
3.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their successors or
assigns; provided that, none of the parties may assign its rights or obligations
hereunder without the prior written consent of the other party.
3.5 Headings. The descriptive headings of the several Articles and
Sections of this Agreement and of the several Schedules to this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
This Agreement shall be construed without regard to any presumption or other
rule requiring construction hereof against the party causing this Agreement to
be drafted.
3.6 Entire Agreement; Modification and Waiver. This Agreement represents
the only agreement among the parties concerning the subject matter hereof and
supersedes all prior agreements whether written or oral, relating thereto. No
purported amendment, modification or waiver of any provision hereof shall be
binding unless set forth in a written document signed by all parties (in the
case of amendments or modifications) or by the party to be charged thereby (in
the case of waivers). Any waiver shall be limited to the provision hereof and
the circumstance or event specifically made subject thereto and shall not be
deemed a waiver of any other term hereof or of the same circumstance or event
upon any recurrence thereof.
3.7 Publicity. Each of the parties represents and warrants to the other
party that it will make no announcement to public officials or the press in any
way relating to the transaction described herein without the prior written
consent of the other party, except as may be required of IVI under the 1933 Act
and 1934 Act and under the rules of the Nasdaq National Market.
3.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Minnesota without regard to the
conflicts of laws rules thereof.
3.9 Benefit. Nothing in this Agreement, expressed or implied, is intended
to confer on any person other than the parties or their respective successors or
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
3.10 Survival. All of the representations, warranties, and
indemnifications made in this Agreement, and all terms and provisions hereof
intended to be observed and performed by the parties after the execution of this
Agreement or the termination hereof, shall survive the execution of this
Agreement or such termination and continue thereafter in full force and effect,
subject to applicable statutes of limitations.
3.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties have duly executed this Registration Rights
Agreement, as of the day and year first written above.
IVI PUBLISHING, INC.
By: /s/ Xxx Xxxxxxx
---------------------------
Its: President & CEO
--------------------------
SHAREHOLDER
By: Xxxxxxxxxx & Xxxxx, P.A.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Its: Vice President
as Attorney-in-fact on behalf of the Investors as
defined above pursuant to authority vested in him
under the Subscription Agreement
